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Estate of McCarthy v. Montana Second Judicial District Court12/9/1999
t arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.'. . . The fact that such discrimination against minors would bar some meritorious claims and thereby reduce total malpractice liability is not enough to justify it. If claims are reduced in an arbitrary manner, the classification scheme denies equal protection of the law.
Torres v. County of Los Angeles (Cal.Ct.App. 1989), 257 Cal. Rptr. 211, 217 (citation omitted). Again, the majority attempts to distinguish the court's holding in Torres. They insist that the decision is not persuasive because Torres addressed a statute allowing the limitations period on a minor's medical malpractice claim to run from the date of the alleged wrongful act, while the limitations period for an adult ran from the date, or the discovery, of the injury . In contrast, the Montana statue allows the limitation period to run during the time a plaintiff is a minor. The difference is academic. Both statutes in question treat minors differently than adults in the same situation, namely when they are victims of medical malpractice, and therefore violate minors' rights to equal protection.
The District Court could find no rational basis for treating children differently under the statute of limitations and found the statute unconstitutional. I would hold the same.
WILLIAM E. HUNT, SR.
Justice Terry N. Trieweiler joins in the foregoing dissent.
TERRY N. TRIEWEILER
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